Citation Nr: 1723520
Decision Date: 06/22/17 Archive Date: 06/29/17
DOCKET NO. 12-17 948A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois
THE ISSUES
1. Entitlement to increases in the "staged" (10 percent prior to April 6, 2012, and 30 percent from that date) ratings assigned for subtalar arthritis of the left ankle with ankylosis (left ankle disability).
2. Entitlement to increases in the "staged" (10 percent prior to April 6, 2012, and 20 percent from that date) ratings assigned for subtalar arthritis of the right ankle (right ankle disability).
3. Entitlement to increases in the "staged" (10 percent prior to May 04, 2010, and 30 percent from December 1, 2011,) ratings assigned for osteoarthritis of the right knee, status post total knee arthroplasty (right knee disability).
4. Entitlement to a rating in excess of 10 percent for patellofemoral arthritis of the left knee (left knee disability).
5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
6. Whether S.W. may be recognized as a helpless child of the Veteran.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Zobrist, Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from January 1980 to March 1980. The increased rating matters are before the Board on appeal from a June 2009 rating decision by the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO) that continued 10 percent (each) ratings for left and right ankle and left and right knee disabilities. An interim (January 2011) rating decision granted a temporary 100 percent rating for right knee disability from May 4, 2010 through June 30, 2010, and again from October 19, 2010, through October 21, 2011; a 30 percent rating was assigned from November 1, 2011, and the 10 percent ratings for left knee and right and left ankle disabilities were continued. Another interim (March 2012) rating decision determined that there was clear and unmistakable error (CUE) in the dates assigned for the temporary 100 percent rating for right knee disability and assigned a 100 rating throughout from May 4, 2010, through November 30, 2011; consequently, that period of time is no longer in appellate status. An interim (May 2012) rating decision granted a 30 percent rating for left ankle disability and a 20 percent rating for right ankle disability, both effective April 6, 2012. An interim (March 2015) rating decision continued the 10 percent rating assigned for left knee disability. As the ratings currently assigned are is less than the maximum schedular rating available for the disabilities at issue, and the Veteran has not expressed satisfaction with the ratings, the appeal continues. AB v. Brown, 6 Vet. App. 35 (1993).
The helpless child matter is before the Board on appeal from the January 2011 rating decision.
In August 2016, a Travel Board hearing was held before the undersigned; a transcript is associated with the record. On the record during the hearing, the Veteran requested that TDIU be considered as part of the increased rating matters on appeal (under Rice v. Shinseki, 22 Vet. App. 447 (2009)). While TDIU previously denied in an August 2013 rating decision (which was not appealed), it has been explicitly re-raised in the context of the present appeal before the Board. Therefore, it has been included as a separate issue above.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on her part is required.
REMAND
At the August 2016 Board hearing, the Veteran testified that her bilateral ankle and knee disabilities had worsened since the last VA examinations (February 2015 for left knee disability and April 2012 for all other disabilities at issue). Accordingly, a contemporaneous examination to ascertain the current severity of those disabilities is necessary. The Board also notes that any records of ongoing treatment for such disabilities may be pertinent and should be secured for the record; any VA records of such evaluation or treatment are constructively of record and must be secured.
Regarding the helpless child matter, VA requested S.W.'s medical records from her residential facility. In an October 2010 phone call, the facility responded that the Veteran is not S.W.'s legal guardian and does not have the authority to consent to records release; that authorization must come from the state guardian. The record does not reflect that VA has requested authorization for release of S.W.'s records from the state guardian. As S.W.'s medical records are critical to establishing her status as a helpless child, authorization by the state guardian for release of the records must be sought on remand.
Accordingly, the case is REMANDED for the following:
1. The AOJ should secure for the record copies of the complete clinical records (any not already associated with the claims file) of any VA evaluations or treatment the Veteran received for her ankle and knee disabilities. The AOJ should also ask her to provide releases for VA to obtain records of any private evaluations or treatment for her ankle and knee disabilities. The AOJ should secure complete records from the providers identified. If any such records are unavailable, the Veteran should be so notified. If she authorizes release of records, but the provider in question does not respond to AOJ's request, she should be advised that ultimately it is her responsibility to ensure private records are received.
2. The AOJ should then arrange for an orthopedic examination of the Veteran to assess the severity of her knee and ankle disabilities. The entire record must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies must be completed, to specifically include testing for pain on both active and passive motion, and in weight-bearing and non-weight bearing. The examiner should note the position of any ankylosis. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
The examiner should have available for review a copy of the criteria in 38 C.F.R. § 4.71a, Codes 5256-5263 (knee) and 5270-5274 (ankle), as well as Code 5055 (knee replacement), and § 4.59, and the findings reported should be sufficiently detailed to allow for application of all criteria therein. The examiner should note whether or not the findings are affected by such factors as pain, use, periods of exacerbation, etc., and opine regarding any additional degree of disability resulting from such factors. The examiner should comment on the nature and degree of functional impairment that is due to the disability. The examiner is also asked to identify (based on review of the record) whether, when, and to what extent the symptoms and functional impairment have worsened during the period on appeal (if such is the case).
The examiner should specifically comment on the impact the disabilities have on occupational functioning. The examiner should indicate whether the Veteran has a current meniscal injury (Codes 5258 and 5259) and, if so, distinguish any symptoms/functional impairment associated solely with such disability entity. (See, e.g., May and July 2010 private treatment records noting meniscal tear)
The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate.
3. Additionally, the AOJ should seek authorization for release of S.W.'s pertinent medical records from her state guardian. If any records sought are unavailable, the scope of the search and the reason for their unavailability must be noted in the record. If the state guardian does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is her responsibility to ensure that pertinent records are received.
4. The AOJ should then review the record, arrange for any additional development necessary (e.g., helpless child examination, if necessary) and readjudicate the claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and her representative opportunity to respond, and return the case to the Board.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).